Virtual Photographers Should Fully Own The Pictures They Take

How copyright falls flat in a digital world.

Technically, taking pictures with a “virtual” camera is possible outside of the gaming industry. Scene building software that employs virtual cameras has existed for a while. Recently though, virtual photography has exploded in gaming with the popularization of photo modes and the leaps in graphic fidelity in modern games. For the sake of this piece, I’ll specifically be talking about the specific realities of the gaming industry and how it relates to the budding community of virtual photographers who have taken a traditional medium into virtual reality.

My foray into this topic began with Instagram. I recently started an IG that’s all about virtual photography. (Shameless link here.) My intent was to post screen captures I had collected from games over the years and new ones too, my current obsession being Assassins Creed: Origins. As I started to post, I came across dozens of accounts with the same objectives, all run by gamers who merely enjoy showing off their photos. I even came across one account that was offering paid services as a virtual photographer. You pay him a small price, and he would go into any game of choice and capture some stunning screenshots of a given character, scene, or environment.

Additionally, there’s also a Society Of Virtual Photographers account and several larger gaming accounts that use these screenshots to drive traffic to more expansive gaming websites. There’s a digital magazine filled with captures taken by artists in various games and a variety of competitions and themed challenges on both Twitter and Instagram that aim to highlight the best shots taken by the community. From my cursory search, the most popular game at this point seems to be Cyberpunk 2077, a game that, despite all of its many issues, offered quite a robust suite of tools for its photo mode. Even so, most any game type imaginable can be found in this budding community on Instagram.

Screenshot taken by me in AC: Origins

So how do the rules of copyright apply to photography?

This question has turned on privacy for traditional photographers. In a public space, photographers have enjoyed almost limitless freedom to take pictures of whatever they see fit. The saying goes, “If you can see it, you can shoot it.” There are some exceptions though. You can’t take a picture of someone on private property even if you are standing on public property. The same goes for certain public areas where people might still enjoy a reasonable expectation of privacy, like a bathroom or meeting or conference rooms or an office building. It’s important to note that there is a bright line between what or who you as a photographer can take a picture of and what photos you can publish for commercial purposes. Generally, you can’t publish a photo for commercial use that includes someone’s recognizable likeness or a copyrighted or trademarked object without prior written consent. You can also take on liability for knowingly publishing photos that promote a false narrative about a certain event that paints someone in a bad light.

When it comes to the Internet and digital spaces, all of this gets complicated for many reasons. Before we proceed, it’s important to note a few things first. I’m not a lawyer. Also, when it comes to the gaming industry, a lot of these intellectual property (IP) questions tend to go unanswered due to a long history of permissiveness by game developers towards user-generated content (UGC) that utilizes their IPs. This symbiotic relationship that has evolved over the years between game companies and their audiences has proven mostly beneficial but also somewhat tumultuous and unstable over time.

A concise way to put it is that 99% of the gaming content and merch that is available on Youtube, Twitch, Redbubble, Instagram, and in other places has not been officially approved or licensed by the owners of the original copyright despite most gaming companies including some wording in their Terms and Conditions (T&C) or End User License Agreements (EULA) about requiring prior written approval for any commercial enterprise involving their IPs. Now, of course, this is somewhat by design. Most of this content operates as both free marketing for a given game and a longevity booster for the life of the game. There are numerous gaming communities that still faithfully play games long after a gaming company has moved on to other things in many parts, thanks to UGC related to the game. Nevertheless, there are limits and where those limits exist is often murky and purely at the discretion of the game developer.

Screenshot taken by me in AC: Origins

In the real world again, photographers get more freedom to shoot due to the interplay between public and private spaces, but that concept of a public digital space doesn’t exist on the Internet. Every company requires you to enter into a contract with them before using their services via T&C and EULA. What language those agreements contain depends on the game developer. I did a cursory search of four big ones: Ubisoft, Bethesda, Blizzard, and CD Projekt Red. While the language differed, the intent was largely the same. They are big fans of UGC but within reason, and they’re the ones who ultimately get to decide what’s within reason. Each company outlines a policy of “no commercial use.” What this phrase means is anyone’s guess and generally up to the game company’s discretion again. CD Projekt Red is the only company of the three that goes into far more detail than the others concerning UGC in their Fan Content Guidelines. They even define some examples of commercially-acceptable uses for fan-made content that falls outside the scope of what they would consider commercial-use, saying, “We’d love for your fan content to be created by fans, for fans. Therefore, you cannot do anything with our games for any commercial purpose, unless explicitly permitted otherwise below (e.g. see section 3 about videos and streams). We’re happy for you to accept reasonable donations in connection with your fan content, but you’re not allowed to make people pay for it or have it behind any sort of paywall (e.g. don’t make content only available to paid subscribers).

Even in CD Projekt Red’s case, much of it is still left up to the discretion of the game developer, and the advantage they have in leaving their T&C and EULA vague is that they then can grant themselves wide breadth to come down arbitrarily on UGC as they see fit. While taking any action usually invites some amount of bad PR, there have been many cases where large companies have pursued small content creators for no reason at all. Additionally, it’s incredibly uncommon for a content creator to have the resources to fight back against them. In many cases, it’s just easier and far less costly to take the content in question down than challenge the company on legal grounds.

Screenshot taken by me in AC:Origins

Imagine a different world for a moment.

The problem in all of this again is the vagueness of the T&C and EULA agreements that leave much of this legal regime up to the sole discretion of the game developer. Much of this due to a federal copyright regime that is onerous, outdated, and in desperate need to be severely rethought in the modern digital era. It’s a problem that extends far beyond gaming too and pervades tech, software, websites, design, art, and many other creative and technical areas in the economy. That being said, I’m intrigued with the idea of a public digital space.

Imagine if gaming companies took a more expansive view of the games they create. With the rise of open world gaming, gaming companies could stipulate specifically that the games they create will operate as truly open, public worlds mimicking the rules of the real world. It could be equivalent in some ways to the open-source movement that exists currently with regards to tech and apps. There are examples of games dabbling with robust economics in their virtual worlds. World of Warcraft and EVE are the two examples that immediately come to mind. There’s already a push for games to move away from linear storytelling to gamers creating their own stories. This could be the next evolution of open world gaming and all they would need to do to unleash this tidal wave of creativity is expressly state that intent in their T&C and EULA.

The only thing holding these gaming companies back is the fear of a loss of control, but what’s also clear are the benefits that they are able to reap from a controlled version of all of this. They already allow UGC to flourish around the worlds they create. With simple tweaks to these agreements, they could unlock the floodgates. This could turn millions of peoples hobbies into full time operations, and it’s not hard to imagine that whatever profits they would be forfeiting initially could be regained ten times over with the right execution and collaborative leadership.

The question now becomes how do we push companies to make this world a reality?

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